UNITED STATES v. MELEKH

UNITED STATES OF AMERICA, PLAINTIFF,v.IGOR Y. MELEKH, ALSO KNOWN AS PETER STEPHENS AND ALSO KNOWN AS "GIPSY," AND WILLIE HIRSCH, ALSO KNOWN AS JOHN GILMORE, DEFENDANTS.

The opinion of the court was delivered by: Robson, District Judge.

Each of the defendants has filed several motions attacking the
validity of the indictment, the jurisdiction of the Court, and
for discovery. The indictment, in three counts, alleges in Count
One, a conspiracy by defendants Melekh and Hirsch with one
Doronkin, to violate 18 U.S.C. § 793(a), (b), and (c), to obtain
information respecting the national defense, particularly
referring to military installations in Chicago and Cook County,
including aerial photographs, with the intent that the material
be transmitted to a foreign Government, the Union of Soviet
Socialist Republics (hereinafter termed U.S.S.R.) for its
advantage, in violation of 18 U.S.C. Chap. 37.

The indictment then recites thirteen overt acts in furtherance
of the conspiracy, which acts consisted of Hirsch's alleged
meeting with an individual in Chicago on or about July, 1958,
also on or about October 24, 1958; and on or about October 25,
1958, Hirsch met with Melekh in Chicago, and on the same day and
at the same place, Hirsch while using the name of John Gilmore
introduced Melekh as "Peter" to an individual, and on or about
the next day Melekh wrote the names "Peter Stephens" and "Gipsy"
on a piece of paper in Chicago and gave an individual ten $20
bills. Another overt act alleges a meeting by Melekh on or about
November 22, 1958, with a person in Newark, New Jersey, and on
the same day, Doronkin went to the Pennsylvania Railroad Station
in Newark; that on or about November 23, 1958, Melekh, in New
York City, gave a person ten $20 bills; and on the same day
Doronkin went to the vicinity of a certain subway station in
Brooklyn; that on or about January 17, 1959, Melekh met an
individual at Flushing, New York, and accepted a map and
photograph from him and gave him $500, all in violation of
18 U.S.C. § 793.

Count Two charges the same defendants with conspiracy from in
about June, 1958, to the date of the indictment, to violate
18 U.S.C. § 951, to induce a United States citizen to act as agent
of the U.S.S.R., without prior notification to the Secretary of
State and without his being a diplomatic official, for which the
agent was to receive valuable consideration for procuring
information for the U.S.S.R. It was part of the conspiracy to use
fictitious names to conceal the conspiracy. The overt acts of the
first count were incorporated by reference, which acts were
charged to be in violation of 18 U.S.C. § 371.

Count Three charges that in October, 1958, in Chicago, Hirsch
acted as an agent of the U.S.S.R. without prior notification to
the Secretary of State, and at the request of the U.S.S.R.
participated in a meeting between a United States citizen and a
representative of the U.S.S.R. to induce the said citizen to
collect information for the U.S.S.R., in violation of 18 U.S.C. § 951,
and that Melekh aided in the commission of the above
offense in violation of 18 U.S.C. § 2 and 951.

The motions of defendant Melekh which are here considered and
determined are:

1. Motion to dismiss Count One of the indictment for failure to
state facts sufficient to constitute an offense against the
United States.

2. Motion to dismiss Counts Two and Three for failure to charge
an offense against the United States.

3. Motion for bill of particulars.

4. Motion to strike overt acts 8 and 10 from Count Two of the
indictment.

5. Motion to strike improper matter from the caption and body
of the indictment.

6. Motion to dismiss on the ground the proceeding is within the
exclusive jurisdiction of the United States Supreme Court.

7. Motion to dismiss indictment on the ground Melekh is
entitled to immunity under the provisions of the United Nations
Charter and principles of international law.

The motions of defendant Hirsch here considered and determined
are:

1. Motion to dismiss Count One for failure to state a crime
under 18 U.S.C. § 793.

2. Motion to dismiss Counts Two and Three on the ground that
venue of such charges is improperly laid in the district of this
Court, and for failure to charge an offense against the United
States.

3. Motion for bill of particulars.

4. Motion to strike overt acts 8 and 10 from Count Two of the
indictment.

5. Motion to examine minutes of Grand Jury to establish failure
of evidence as to guarded nature of information and upon such
finding to dismiss indictment.

Motions of Melekh and Hirsch to dismiss Count One. Both
defendants assert the first count of the indictment is fatally
defective in that it fails to allege that the information which
the conspiracy concerned was "guarded" or secret information,
which element the decisions hold to be essential to the existence
of a crime. In other words, there is no crime where the
conspiracy concerned the gathering of information readily
available to all who took the trouble to seek it out and collate
it. Defendants contend that the omission is one that cannot be
cured by discovery or bill of particulars (Babb v. United States,
5 Cir., 1955, 218 F.2d 538; Lowenburg v. United States, 10 Cir.,
1946, 156 F.2d 22); nor can it be inferred from any of the other
allegations in the indictment.

Count One follows the language of the act, which defendants
concede is ordinarily a sufficient basis for the phrasing of an
indictment. They point out, however, that in Gorin v. United
States, 1941, 312 U.S. 19, at page 28, 61 S.Ct. 429, at page 434,
85 L.Ed. 488, the Court said:

"Where there is no occasion for secrecy, as with
reports relating to national defense, published by
authority of Congress or the military departments,
there can, of course, in all likelihood be no
reasonable intent to give an advantage to a foreign
government."

And in United States v. Heine, 2 Cir., 1945, 151 F.2d 813, it was
held lawful to transmit any information about weapons and
munitions which the services themselves made public, as well as
information which the services themselves never thought it
necessary to withhold. Robertson v. United States, 5 Cir., 1948,
168 F.2d 294, is cited for its holding that where a statute
implies an essential ingredient of the offense, it must be
alleged. And United States v. Carll, 1881, 105 U.S. 611, 612, 26
L.Ed. 1135, requires the indictment to allege all the facts and
elements necessary to bring the case within the statute.

Neither the Gorin nor the Heine case concerned a direct attack
on the sufficiency of an indictment for lack of an allegation of
the secret character of the information purloined.

The Court is of the opinion that inasmuch as the crime charged
in Count One is conspiracy, the allegations of the indictment are
sufficient against a motion to dismiss. The rule as to the
sufficiency of the pleadings of the substantive offense which is
the object of the conspiracy was clearly set out in Wong Tai v.
United States, 1927, 273 U.S. 77, 81, 47 S.Ct. 300, 301, 71 L.Ed.
545, where the Supreme Court said:

"It is well settled that in an indictment for
conspiring to commit an offense — in which the
conspiracy is the gist of the crime — it is not
necessary to allege with technical precision all the
elements essential to the commission of the offense
which is the object of the conspiracy * * * or to
state such object with the detail which would be
required in an indictment for committing the
substantive offense * * *. In charging such a
conspiracy `certainty to a common intent, sufficient
to identify the offense which the defendants
conspired to commit, is all that is necessary.'"
(Italics supplied.)

Immediately theretofore in describing the indictment there being
considered, the Court had said:

"It charged the defendant, with definiteness and
certainty and reasonable particularity as to time and
place, with conspiring with a named person and others
to commit certain specified offenses in violation of
the Opium Act; and further charged him, in like
manner with doing various specified acts to effect
the object of the conspiracy."

Recently the Second Circuit Court of Appeals in United States
v. Switzer, 2 Cir., 1958, 252 F.2d 139, similarly held in a case
involving an indictment for conspiracy to transfer a bankrupt's
property illegally, that the indictment need not describe the
substantive crime with the particularity of an indictment for
that offense.

In United States v. Rosenberg, 2 Cir., 1952, 195 F.2d 583, at
page 591, which involved an offense similar to ...

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